MY WORST MOMENT AS A LAWYER By Sabin Willett Remarks delivered December 5, 2006 at Newburyport, MA Amnesty International Meeting My worst moment as a lawyer took place on August 30, 2006, at the stroke of noon, just as I was leaving Echo One, an interrogation cell at Guantanamo Bay. I will come to the facts by and by, but first, a hypothetical. It is a favorite of Professor Alan Dershowitz of the Harvard Law School: the ticking time bomb scenario. I call it “Agent Jack Bauer’s Hypothetical.” Here’s how it goes: 1. We know a bomb is somewhere near Times Square. 2. We know it is a weapon of mass destruction. 3. We know it’s... ticking. The Problem is, we don’t know where the bomb is. You may ask, how do we know all this, and not know where the bomb is? Never mind, says Agent Jack Bauer. Wait, there’s more: 1. We have in our possession, Ahmed. 2. He knows where the bomb is. 3. We know that he knows where the bomb is. Such a lot of things we know! How did we acquire all this intimate knowledge, and remain ignorant of the key thing? Don’t ask questions, says Agent Alan Dershowitz. Here’s the delicious thing about this hypothetical. It still isn’t done – it’s going to get even stupider. The question is whether we might torture Ahmed, so as to save millions of New Yorkers. Ahmed – by definition a psychotic – will tell us where the bomb is, if only we could torture him, and do so before the bomb goes off! Fantastic! Ahmed won’t lie to us! Won’t find a way to misdirect us for a few minutes. Won’t tell us things he thinks we want to hear. How is it that profoundly brilliant people, like Professor Alan Dershowitz, talk earnestly about objectively stupid hypotheticals like this – hypotheticals with no tether on reality? I’ve been to Guantanamo Bay six times, I’ve met twelve men there, I’ve read hundreds of pages of military records, I have read evidence of the most systematic and sordid torture, and I have never read, anywhere, a single allegation about a bomb, ticking or otherwise. Fear and war do funny things to people. Even intelligent people. Up on Capitol Hill last summer, they were watching Agent Jack Bauer, and reading Agent Alan Dershowitz, and Professor John Yoo, late of the Justice Department and now teaching at Berkeley (a man who would defend the Marquis de Sade if he were in the Executive branch). Congress had been learning from these guys, because two months ago they passed the Military Commissions Act, a law that announces our nation’s fidelity to the Geneva Conventions the old fashioned way – by redefining MY WORST MOMENT AS A LAWYER them. “Cruel, inhuman and degrading” is defined no longer by dictionary but by the President. Torture means murder, and organ failure, and rape, and so on. And, thus it doesn’t mean the things not defined: call them institutionalized cruelty. Isolation, sensory deprivation, stripping prisoners naked, threatening them with dogs, terrifying them with suffocation, humiliating them: a brand of torture called “soft” only by those who have never experienced it. All legal now. Because our world is more influenced by Agent Jack Bauer than by facts – just open your newspaper, and ask yourself what fact it was that got us into the blood swamp of Iraq – let’s ask an amoral question. Does torture work? Well, we know of an actual prisoner, subjected to precisely these “soft” torture techniques who, after a few months, confessed to his involvement in a weapons of mass destruction plot – a plan to explode germ weapons in cities and murder millions of people. His name wasn’t Ahmed. It was Frank. Colonel Frank Schwable, of the First Marine Air Wing, United States Marine Corps. He was shot down over North Korea in 1952. Schwable was not beaten. His North Korean captors used the techniques now blessed by Congress: isolation, humiliation, sleep deprivation. Schwable wrote a lengthy confession, detailing America’s plans to use of germ warfare in Korea. It was all false, of course. Later, Schwable said: “You sit there and you just think… you grasp at anything your mind can concoct... your judgment becomes warped… You get a feeling of utter, hopeless, despair." He added: "I want to re- emphasize that I did not undergo physical torture. Perhaps I would have been more fortunate if I had, because people nowadays seem to understand that better. I didn't have that. Mine was the more subtle kind of torment. That is a little bit harder, I am afraid, for people to understand." On November 30, 1953, Henry Cabot Lodge, US Ambassador to the UN, went on the floor of the United Nations to denounce this treatment as a “step straight back to the jungle." This year, the Congress and the President took that step. But that’s ancient history, Korea. No one studies history any more – they just cleaned all the books out of the University of Texas library. (They were getting in the way of the cafe tables.) 9/11 changed everything, it’s a new paradigm, who needs history! Right? How about recent history? What does it say about whether torture works? Has anyone heard of Ibn Sheikh al-Libi? They sent him to Egypt, and tortured him. He, like Colonel Schwable, was able to glean what his captors wanted to hear. So he told us all about the weapons of mass destruction ... in Iraq. Some people don’t agree that these techniques work. Twenty former careers interrogators of the Army submitted testimony to the Congress last summer that they don’t work. Congress wasn’t listening. The general counsel of the Navy told his superiors in 2002 that these methods were illegal, they were immoral, and they don’t work. They weren’t listening either. To whom were they listening? Agent Jack Bauer. - 2 - MY WORST MOMENT AS A LAWYER Torture hypotheticals might be harmless if they were merely stupid. But it isn’t that simple. When prominent intellectuals like Dershowitz and Yoo and prominent public servants like Attorney General Gonzalez become apologists for official cruelty, when they answer the question “May we torture?” with, “It depends what you mean by ‘torture,’” instead of, “Never,” they sew vagueness among the policy makers. “It Depends” is passed from the policymakers to the generals, and from the generals to the colonels, and from the colonels to the platoon commanders, and so on until “It Depends” falls into the lap of a 20 year old Marine specialist, who decides to string up by his arms in a US Air Base at Bagram, Afghanistan a young Afghan called Dilawar. (The Marine knows there’s a weapon of mass destruction somewhere too, and that Dilawar knows about it. Or something.) Except, in December, 2002 it wasn’t a hypothetical any more. It was a fact that Dilawar hung, Christ-like, by his wrists from a wall, and called out to God as they beat him, until, on December 10, 2002, Dilawar was dead. Americans did this. People with uniforms on, and Velcro patches on the uniforms, and my flag on the patches. Dilawar was a taxi driver. The only bomb he knew about was the ancient Mercedes diesel he drove for fares. His brother came to Bagram and took the body away to the Afghan village where Dilawar’s father and mother and wife and sisters and daughter tried to clean it up and bury it. They wept and asked God to make sense of this for them, but He couldn’t. He couldn’t, but I can. It all comes of hypotheticals. So let’s have no more of hypotheticals this evening. Let’s stick to facts. Besides, if we don’t get to the facts soon, I’ll never come round to my worst moment as a lawyer. And the main fact we’d like is this. After five years, whom are we holding down there at Guantanamo Bay, anyway? The way we used to answer that question in this country was in a habeas corpus hearing. The prisoner would demand the legal basis for his imprisonment. The government would have its say, and a judge would decide. But this Fall your Congress and your President abolished that.. So how do we answer the question? One way is rhetorically. “The people that are there are people we picked up on the battlefield, primarily in Afghanistan. They’re terrorists. They’re bomb makers. They’re facilitators of terror. They’re members of Al Qaeda and the Taliban.” – Vice President Cheney “Among the most dangerous, best trained, vicious killers on the face of the earth.” – Donald Rumsfeld (Jan. 27, 2002) They would “gnaw through hydraulic lines of transport planes.” – Gen. Richard Myers (Jan. 11, 2002), “They were captured on the battlefield seeking to harm U.S. soldiers.” – Senator John Cornyn (R-TX) - 3 - MY WORST MOMENT AS A LAWYER So the rhetoric is powerful and alarming. What about the numbers? The number of Prisoners Held at Guantanamo Bay Cuba is approximately 450. Most of them are in their fifth, and some are starting their sixth year of U.S. captivity. The number of them who have ever been charged with a crime is … 10. The number charged with a 9/11-related crime is… Zero. The number, after five years, convicted of anything is… Zero. How about all those people shooting at American troops on the battlefield? The number, according to military allegations is … five percent.